Chapter 7

Question 1

national origin discrimination protection 308

Answer 1

That is, it is an unlawful employment practice for an employer to limit, segregate, or classify employees in any way that would deprive them of employment opportunities because of national origin

Question 2

national origin 308

Answer 2

individuals or her or his ancestor place of origin(as opposed to citizenship), or physical, cultural, or linguistic characteristics of an origin group.

Question 3

adverse employment action 313

Answer 3

any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee

Question 4

guidelines on discrimination because of religion or national origin 316

Answer 4

federal guidelines that apply only to federal contractors or agencies and that impose on these employers an affirmative duty to prevent discrimination

Question 5

The statutory basis for protection against national origin discrimination is 306

Answer 5

“Legislation Prohibiting National Origin Discrimination.” These statutes include section 703(a) of Title VII of the Civil Rights Act of 1964 and the Immigration Reform and Control Act of 1986

Question 6

TITLE VII, CIVIL RIGHTS ACT OF 1964 Sec. 703(a) 306

Answer 6

It shall be an unlawful employment practice for an employer— (1) to fail or to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … national origin.

Question 7

IMMIGRATION REFORM AND CONTROL ACT OF 1986 Sec. 274A(a) 306

Answer 7

(1) It is unlawful for a person or other entity: (A) to hire or to recruit or refer for a fee for employment in the United States an alien knowing the alien is an unauthorized alien with respect to such employment, or (B) to hire for employment in the United States an individual without [verification of employment eligibility]. (2) It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or had become) an unauthorized alien with respect to such employment. (3) A person or entity that establishes that it has complied in good faith with the [verification of employment eligibility] with respect to hiring, recruiting or referral for employment of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A).

Question 8

IMMIGRATION REFORM AND CONTROL ACT OF 1986 Sec. 274(B)(a) 306

Answer 8

(1) It is an unfair immigration-related practice for a person or other entity to discriminate against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment— (A) because of such individual’s national origin, or (B) in the case of a protected individual [a citizen or authorized alien], because of such individual’s citizenship status.

Question 9

why was national origin included

Answer 9

National origin was included in Title VII’s list of protected classes to ensure that employers did not make employment decisions based on preconceived notions about employees’ or applicants’ country of origin

Question 10

Realities about National Origin Discrimination (Exhibit 7.2) 307

Answer 10

1.“Citizenship” and “national origin” are not synonymous. 2.No matter the national origin of a restaurant, it likely will still be required strictly to abide by Title VII non-discrimination principles in hiring its wait staff. 3.The EEOC considers English-only rules applied at all times presumptively discriminatory, although courts have not always agreed.

Question 11

Title VII related to national origin protects or not protects question

Answer 11

it protects- non us citizens from employment discrimination based on the categories of the act does not protect- -illegal aliens from deportation to homeland -protects individuals based on their race and gender

Question 12

the national origin discrimination protection prevents employERS from 308

Answer 12

• An employer may not group its employees on the basis of national origin, make employment decisions on that basis -implement policies or programs that, though they appear not to be based on an employee’s or applicant’s country of origin, actually affect those of one national origin differently than those of a different group.

Question 13

An employEE may successfully claim discrimination on the basis of national origin if it is shown that 308

Answer 13

1.He or she is a member of a protected class (i.e., articulate the employee’s national origin). 2.He or she was qualified for the position for which he or she applied or in which he or she was employed(The claimant must show that he or she meets the job’s requirements pg. 309)( and they must show without the benefit of accommodation pg. 309) 3.The employer made an employment decision against this employee or applicant. (this is when,for national origin discrimination is that the employee has suffered an ADVERSE EMPLOYMENT ACTION by the employer’s employment decision) This may include a demotion, termination, or removal of privileges afforded to other employees. The adverse effect may arise either because employees of different national origin are treated differently (disparate treatment) or because the policy, though neutral, adversely impacts those of a given national origin (disparate impact 4.The position was filled by someone who was not a member of the protected class.

Question 14

Note that the law provides protection against discrimination based only 308

Answer 14

on country of origin, not on country of citizenship

Question 15

Title VII protects employees who are not U.S. citizens from employment discrimination based on 308

Answer 15

categories of the Act, but it does not protect them from discrimination based on their status as aliens, rather than as U.S. citizens

Question 16

Good Note

Answer 16

Many national origin cases under Title VII involve claims of discrimination by those who were not born in America; however, American-born employees also are protected against discrimination on the basis of their American origin

Question 17

No accommodation of one’s national origin is required of employers 309

Answer 17

For example, while an employer would be required to reasonably accommodate an employee’s religious attire, there is no similar responsibility to accommodate an employee’s attire of national origin, such as traditional African dress, unless it can be shown to overlap with his or her religion

Question 18

The employer may counter the employee’s claim that she or he is otherwise qualified by showing that national origin is actually a bona fide occupational qualification (BFOQ 309

Answer 18

That is, the employer may explain why a specific national origin is necessary for the position applied for, why it is a legitimate job requirement that is reasonably necessary for the employer’s particular business

Question 19

Good Note 309

Answer 19

customer, client, or co-worker discomfort or preference may not be relied upon by the employer

Question 20

Good Note 311

Answer 20

In addition, where the provisions of an international treaty apply and the BFOQ is citizenship rather than national origin, a foreign-based multinational may be allowed to express a preference for its own citizens

Question 21

The third element of the prima facie case for national origin discrimination is that the employee has suffered an adverse employment action by the employer’s employment decision(LOOK AT FLASHCARD 13 #3) 313

Answer 21

This may include a demotion, termination, or removal of privileges afforded to other employees. The adverse effect may arise either because employees of different national origin are treated differently (disparate treatment) or because the policy, though neutral, adversely impacts those of a given national origin (disparate impact)

Question 22

Good Note 314

Answer 22

Once the employee has articulated a prima facie case of discrimination based on national origin, the burden falls to the employer to identify either a BFOQ or a legitimate nondiscriminatory reason (LNDR) for the adverse employment action

Question 23

National Origin Accomidation

Answer 23

No accommodation of one’s national origin is required of employers. FOR EXAMPLE: while an employer would be required to reasonably accommodate an employee’s religious attire, there is no similar responsibility to accommodate an employee’s attire of national origin, such as traditional African dress, unless it can be shown to overlap with his or her religion.

Question 24

Good note 318

Answer 24

Title VII’s prohibition against discrimination on the basis of national origin does not necessarily prohibit discrimination on the basis of citizenship; this only occurs where citizenship discrimination

Question 25

Good Note 318

Answer 25

The Immigration Reform and Control Act (IRCA), in contrast to Title VII, does prohibit(forbid) employers in certain circumstances from discriminating against employees on the basis of their citizenship or intended citizenship, and from hiring those not legally authorized for employment in the United States. However, IRCA **DOES** allow discrimination in favor of U.S. citizens as against legal aliens.——- the IRCA allows employers to enact a preference for U.S. citizens if the applicants are all equally qualified. Employers MAY NOT act on this preference if the foreign national is more qualified for the position than the U.S. citizen

Question 26

Employers not subject to Title VII’s prohibitions because of their small size 318

Answer 26

those employers with 4 to 14 employees are prohibited from discriminating on the basis of national origin; and employers with 4 or more employees may not discriminate on the basis of citizenship. However- Two acceptable BFOQs are statutorily allowed under IRCA: 1.English-language skill requirements that are reasonably necessary to the normal operation of the particular business or enterprise. 2.Citizenship requirements specified by law, regulation, executive order, or government contracts, along with citizenship requirements that the U.S. attorney general determines to be essential for doing business with the government.

Question 27

The main difference between a proof of discrimination under Title VII and IRCA is that, in proving a case of disparate impact 318

Answer 27

Title VII does not require proof of discriminatory intent, while IRCA requires that the adverse action be knowingly and intentionally discriminatory. Therefore, innocent or negligent discrimination is a complete defense to a claim of discrimination under IRCA

Question 28

Middle Eastern discrimination after 9/11 316

Answer 28

The U.S. Department of Justice (DoJ), through its National Origin Working Group initiative, is working proactively to combat civil rights violations against Arab, Sikh, and South-Asian Americans, as well as those who are perceived to be members of those groups.

Question 29

Harassment/National Origin Note (examples on pg. 315) 314

Answer 29

Title VII also protects employees against harassment on the basis of national origin Not all harassment is prohibited under Title VII. Similar to claims of sexual harassment, claims of national origin harassment are only actionable if the harassment was so severe or pervasive that the employee reasonably finds the workplace to be hostile or abusive-Common concerns include ethnic slurs, workplace graffiti, or other offenses based on traits such as an employee’s birthplace, culture, accent, or skin color.

Question 30

Harassment/National Origin Note pg. 315 (in case 3)

Answer 30

On the other hand, some forms of discrimination—such as discrimination based upon citizenship status, or “alienage,” as distinct from the specific nation of origin—are not prohibited under Title VII. In addition, the law remains unsettled regarding Title VII’s application to cases of discrimination against a worker based on the national origin of the worker’s spouse or partner

Question 31

Employers are instead required to verify all newly hired employees by examining documents that identify the individual and show his or her authority to work in the United States using a Form I-9. Further, employers, recruiters, and those who refer individuals for employment are required to keep records pertaining to IRCA requirements

Answer 31

“Employer Responsibilities under IRCA.”) A violation of this provision can mean personal liability for corporate officers, so it is not a requirement to be taken lightly.

Question 32

List of Acceptable Documents

Answer 32

Pg. 321

Question 33

Employer Responsibilities under IRCA: DO and Don’ts

Answer 33

Pg. 322 & 323

Question 34

In 2007, in an effort to further implement these provisions, the Department of Homeland Security (DHS) announced that employers would be required to terminate all workers who used false social security numbers, otherwise known as a “NO-MATCH” (based on the 140,000 no-match letters received annually by employers from the Social Security Administration notifying them that the names and social security numbers of employees do not match the agency’s records). pg.325

Answer 34

Employers were to have 90 days in which to reconcile the no-match letters; if they could not, they were going to be forced to fire the worker or face fines of up to $10,000. However, only five days before its implementation, a California federal judge issued an order blocking the implementation of the no-match rule based on a suit filed jointly by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, and the National Immigration Law Center In late 2007, the Bush administration suspended its defense of the rule, preferring to go back to the drawing board in order to respond to the judicial concerns.The DHS issued a Supplemental Proposed Rule in March 2008 and a Supplemental Final Rule in October 2008 that required employers to clear up the discrepancy within 93 days or fire the employees in question. Neither the Supplemental Proposed Rule nor the Supplemental Final Rule, however, was ever enforced President Obama’s Secretary of Homeland Security, upon taking office in early 2009, ordered a review of the no-match policy. On July 8, 2009, the DHS announced that it was rescinding the no-match rule. Whereas the Bush administration focused its worksite employment strategy on the arrest and deportation of undocumented workers, the Obama administration focused instead on civil and criminal actions against employers that knowingly hired undocumented workers The current enforcement strategy is to investigate employers’ compliance with the Form I-9 rules. Under federal law, a Form I-9 (Employment Eligibility Verification) must be filed for every new employee regardless of citizenship, and it must be retained for three years after the date of hire or one year after the date of discharge. Once an employer receives a Notice of Inspection from the Immigration and Customs Enforcement (ICE) Division of the Department of Homeland Security, it has three days to provide the Form I-9s for all employees working for that employer during the stated audit period.

Question 35

undocumented worker note 325

Answer 35

However, in Hoffman Plastic Compounds Inc. v. NLRB,40 the U.S. Supreme Court held that the NLRB could not award back pay to unauthorized workers who had been unlawfully discriminated against for engaging in union-organizing activities. According to the Court to do so would contravene federal immigration policy embodied in IRCA.

Question 36

undocumented workers note 325

Answer 36

after the worker complained of discrimination, the EEOC will determine whether the information was acquired through a retaliatory investigation. If the investigation is retaliatory, the employer will be liable for equitable relief as well as monetary damages without regard to the worker’s actual work status. However, a worker’s undocumented status may serve as a legitimate reason for an adverse employment action, although employers who knowingly employ undocumented workers could not assert this defense in a discrimination claim.

Question 37

English Fluency Note

Answer 37

To avoid alienating these employees, to ensure realistic and reasonable job qualifications, and to decrease the risk of litigation, employers should not permit managers to arbitrarily impose language restrictions. A job requirement that an employee must be fluent in English is legal if fluency is required to perform the work effectively To best be protected from possible Title VII liability, the employer must be able to show that English fluency is required for the job and that the requirement is necessary to maintain supervisory control of the workplace

Question 38

what protects undocumented workers from abuse

Answer 38

the fair labor standards act

Question 39

Guidelines on discrimination because of religion or national origin Various approaches an employer should engage to remedy existing deficiencies (i.e., affirmative action). this outreach requirement should include the following: pg. 316

Answer 39

1.Internal communication of the obligation to provide equal employment opportunity without regard to religion or national origin. 2.Development of reasonable internal procedures to ensure that the equal employment policy is fully implemented. 3.Periodic informing of all employees of the employer’s commitment to equal employment opportunity for all persons, without regard to religion or national origin. 4.Enlistment of the support and assistance of all recruitment sources. 5.Review of employment records to determine the availability of promotable and transferable members of various religious and ethnic groups. 6.Establishment of meaningful contacts with religious and ethnic organizations and leaders for such purposes as advice, education, technical assistance, and referral of potential employees (many organizations send job announcements to these community groups when recruiting for positions). 7.Significant recruitment activities at educational institutions with substantial enrollments of students from various religious and ethnic groups. 8.Use of the religious and ethnic media for institutional and employment advertising.

Question 40

member of a protected class ( national origin ) note

Answer 40

Many national origin cases under Title VII involve claims of discrimination by those who were not born in America; however, American-born employees also are protected against discrimination on the basis of their American origin. For example, a court has held that the employer’s conscious decision about whom to dismiss on the basis of the national origin of its employees (in an effort to promote “affirmative action”) was not acceptable because that method tended to disfavor Americans, in favor of other nationalities

Question 41

member of a protected class note It also may serve as the basis for a national origin discrimination, under title VII, claim if the employee:

Answer 41

• Is identified with or connected to a person of a specific national origin, such as when someone suffers discrimination because he or she is married to a person of a certain ethnic heritage.
• Is a member of an organization that is identified with a national group
• Is a participant in a school or religious organization that is affiliated with a national origin group.
• Has a surname that is generally associated with a national origin group.
• Is perceived by an employer to be a member of a particular national origin group, whether or not the individual is in fact of that origin.

Question 42

Who are excluded from guidelines on Discrimination Because of Religion or National Origin

Answer 42

Blacks, Spanish-surnamed Americans, Asians, and Native Americans are specifically excluded from the guidelines’ coverage because of their protection elsewhere in Office of Federal Contract Compliance Rules.

Question 43

Garcia v. Spun Steak Co

Answer 43

Garcia v. Spun Steak Co., is one of the most important cases on the subject. In Garcia, the Ninth Circuit considered an employer’s policy that required bilingual workers to speak only English while on the job, though it allowed other languages to be spoken during breaks and employees’ personal time. Spanish-speaking employees argued that the policy was discriminatory because it denied them the ability to express their cultural heritage, denied them a privilege of employment enjoyed by speakers of English as a first language, and created an atmosphere of inferiority and intimidation. The court rejected these arguments, stating that Title VII “does not protect the ability of workers to express their cultural heritage at the workplace,” but is “concerned only with disparities in the treatment of workers.” The court further argued that “Title VII is not meant to protect against rules that merely inconvenience some employees, even if the inconvenience falls regularly on a protected class.”

Question 44

Foley v. Connelie,32 .

Answer 44

Foley v. Connelie,32 the Supreme Court held that a rule requiring citizenship was valid in connection with certain nonelected positions held by officers who participate directly in the formulation, execution, or review of broad public policy. This is called the “political function” exception for positions that are intimately related to the process of self-government. In cases where the restricted position satisfies this exception, discrimination against legal aliens is permitted. Espinoza v. Farah Manufacturing Co., included for your review, is the seminal case by the U.S. Supreme Court in the area of discrimination on the basis of citizenship.